Tuesday, March 13, 2012

Should the Actual Facts of Supreme Court Cases Matter?

By Mike Dorf

In a recent essay in the New Yorker, Dahlia Lithwick reviews a new book by Dale Carpenter that tells the story behind Lawrence v. Texas. As Lithwick and (in much more detail) Carpenter explain, the Supreme Court's decision of the case was based on a false picture of the facts: John Geddes Lawrence and Tyron Garner did not have a longstanding deep personal relationship, nor were they even engaged in sex when they were apprehended by the Houston police. In order to help bring a test case, they agreed not to contest the police version of the facts (alleging that they were caught in flagrante delicto) and the movement lawyers in turn concealed the somewhat tawdry nature of their non-relationship relationship so as to keep before the Justices a sanitized, middle-class image of same-sex relationships.

As reported by Lithwick, the story sounds fascinating and I look forward to reading Carpenter's book. But as a constitutional lawyer, I'm tempted to say: Well, so what? This is hardly the first time that the Supreme Court based an important decision on a sketchy version of the facts. Consider Wickard v. Fiburn, the New Deal-era Commerce Clause case that will likely play an important role in the Supreme Court's consideration of the minimum coverage provision of the Affordable Care Act. Here is how Justice Jackson described the excess wheat grown by farmer Filburn:

[It has been Filburn's] practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

Subsequent cases and some academic commentary have tended to characterize Filburn's excess production as the equivalent of hobby farming. Yet as Jim Chen points out in his chapter of my book, Constitutional Law Stories, that's impossible. Filburn was accused of harvesting 239 excess bushels of wheat beyond his quota. Chen writes: "To consume 239 excess bushels, the Filburn family would have had to consume
nearly forty‑four one‑pound loaves of bread each day for a year."

But does it matter for the law that Filburn was not the hermit that the Court and commentators have sometimes imagined him to be? I don't think it should. The Supreme Court decides cases to establish general principles of law. Insofar as the facts in a particular case bear on the contours of those principles, the key facts are the facts as perceived by the Court, rather than the facts as they may have actually been. Judicial truthiness, not the real truth, matters to the law.

To be sure, there is rhetorical political value in revealing that the underlying facts in some test case were not as the Court assumed. That is why the pro-life movement has made such a big deal out of the apparent conversion of Norma McCorvey--the Jane Roe of Roe v. Wade--from pro-choice symbol to pro-life activist. With the pro-life movement's recent claim that abortion leads to regret, McCorvey is a powerful symbol--even though there may not be good reason to think that her own feelings of regret are typical. Lucinda Finley's chapter on Roe in Constitutional Law Stories shows how McCorvey herself was never an ideal plaintiff and thus offers reasons to be careful about drawing any general lessons from her experience.

I don't mean to say that we should ignore the real stories behind the stylized statements of fact one reads in judicial opinions. Quite the contrary. I edited Constitutional Law Stories precisely because I think that the back story is extremely important in making sense of how the law develops. But the back story is never just the story of the particular petitioners and respondents who happen to appear in the caption of the case the Supreme Court hears. The complete back story features a range of such protagonists as well as social activists, lawyers (many of whom are also activists), and the public. The story of the particular protagonists in a case matters most when it tells us something about the broader social context.

Do we learn anything from the back story of Lawrence? Sure. And Lithwick gestures in the direction of the story's broader significance, but I would put a finer point on it than she does. Lithwick notes how the LGBTQ movement that brought the Lawrence case wanted to present a middle-class "sameness" narrative. In this view, gays and lesbians are just like straights, except for the sex of the people they love. Because Lawrence and Garner didn't fit that narrative, their real story was suppressed.

De-emphasizing inconvenient facts could be described as simply what good lawyers do. What makes the suppression of the real attributes of Lawrence and Garner so poignant in the Lawrence case is that it might serve as a metaphor for the price of progress for the LGBTQ movement. To gain legal and social acceptance of the legitimacy of same-sex relationships, LGBTQ Americans have had to portray their lives as largely indistinguishable from the lives of straight Americans: Ozzie and Harriet with better clothes, or in a Subaru Forester. And that's fine for LGBTQ Americans who want to live conventional lives.

But not that long ago, the LGBTQ movement was split on the question of whether to fight for the right to full participation in the institutions that the hetero world had created or instead to fight for the right to redefine sexuality and human relationships more broadly. Romer and Lawrence and the direction of energy towards securing marriage equality represent the triumph of the former view. The suppression of the real identities of Lawrence and Garner -- their closeting, if you will -- thus could be said to reproduce within the movement the very dynamic against which the second view was struggling in the wider world. For that reason, the story that Carpenter has to tell is not simply an interesting but idiosyncratic tale of two people whose case happened to end up before the Supreme Court. It is potentially a microcosmic version of the story of the movement itself.

7 comments:

Great post. The issue also seems to have come up in Citizens United, and the Supreme Court's decision to hear the Montana and potentially revisit Citizens United.

In Citizens United, Justice Kennedy assumed that unlimited giving by corporations would be completely transparent, but as it turns out it is not. Donors can funnel money into an anonymous shell corporation, which then gives the money to a super-PAC -- a result that Kennedy either didn't envision or thought was contrary to the regulations.

We'll have to wait to see whether this factual predicate was sufficiently central that it will change Kennedy's thinking.

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